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Legal Questions and Answers By – Franco Simone, Esq.

Posted on 01. Dec, 2018 by in all, Magazine Articles

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Q: I do not allow pets in my apartments. I have a tenant who is claiming that her cat is “an emotional support animal” and she says that she is entitled to a reasonable accommodation.  Do I have to let her keep the cat?

A: Yes, a landlord must work with a disabled tenant to make reasonable accommodations. If your tenant has a note from a doctor saying that he or she requires “an emotional support animal” for a condition that is considered a disability, then you must comply with her request. Remember, an “emotional support animal” is not considered a pet.

Q: My tenant told me she has a disability and is requesting an emotional support animal as an accommodation. From her physical appearance, she does not appear disabled. Can I ask questions about her specific disability?

A: No. You may not ask the tenant to describe her disability to you or explain how the animal will assist her. However, if your tenant has a disability that is not readily apparent or known, you may ask your tenant to provide a note from her doctor stating that she has a disability and that she needs an emotional support animal.  If the tenant refuses to provide documentation for the necessity of an emotional support animal, then you may serve the tenant with a 3 Day to Perform Covenant or Quit to remove the animal in accordance with the terms of your lease. Please contact a Landlord/Tenant attorney prior to serving such notice.

Q: My insurance is refusing to cover my rental property because of my tenant’s emotional support animal. What can I do?

A: HUD and the Department of Justice released a joint statement that states a reasonable accommodation request (such as a tenant having an emotional support animal) is unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations. If an insurance carrier would increase costs, cancel or cause an adverse change in the policy terms this is seen as an undue financial and administrative burden. However, you are also supposed to determine whether comparable insurance is available in the market.

Q: Can I charge my tenant a pet deposit or an extra high deposit if they have a service animal or emotional support animal?

A: No. Service animals and emotional support animals are not considered pets, so you cannot charge the tenant the same fees you would charge a tenant with a pet. Further, a request for an accommodation of a service animal and emotional support animal may not be unreasonably denied or conditioned upon payment of a fee or deposit.

Q: I have a weight limit of 20 pounds for all pets in my apartment complex. Can I apply this weight limit to emotional support or service animals?

A:  No, you cannot limit the weight of an emotional support or service animals in accordance with your lease provisions or pet addendum. The emotional support or service animal is not a pet so your regular rules regarding pets do not apply to these animals. This includes all restrictions on weight, breed, and size of these animals.

 Q: Can I require that the emotional support animal be trained?

A: No. According to HUD, emotional support animals do not necessarily need specialized training. Currently, it is not advisable to inquire into a service animal’s training once you receive a reasonable accommodation request from a tenant. However, service animals require specific training and must fulfill other requirements in order to be considered a service animal.

Q: I have been receiving complaints from my tenants about another tenant’s emotional support animal. What am I required to do?

A: Even though your tenant has an emotional support animal, she is still responsible for complying with all provisions of the lease/rental agreement and cannot cause or allow a disturbance of her neighboring tenants if your lease/rental agreement prohibits it.  Further, the tenant’s animal cannot cause a nuisance.  So, you may be able to serve the tenant with a notice to perform covenant or quit, if your lease/rental agreement prohibits the tenants from disturbing surrounding tenants or a notice to quit for nuisance if the animal is causing a nuisance.

Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center, has been doing evictions for over 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday – Friday from 9:00 AM to 5:00 PM.  Tel: 619-235-6180, website: www.landlordslegalcenter.com or email info@simonelawfirm.com.

 

 

 

 

 

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